Regina v Greene [2001] NSWCCA 258

New South Wales Court of Criminal Appeal

CITATION : Regina v Greene [2001] NSWCCA 258 FILE NUMBER(S) : CCA 60047/01 HEARING DATE(S) : 29/06/01 JUDGMENT DATE : 29 June 2001

PARTIES : Regina v Trevor Clive Greene JUDGMENT OF : Wood CJ at CL at 21; Howie J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/51/0275 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : M.C. Grogan - Crown C.B. Craigie - Applicant SOLICITORS : S.E. O'Connor - Crown D.J. Humphreys - applicant CATCHWORDS : Criminal Law - Sentence - Use offensive weapon with intent to inflict gbh - importance of general deterrence in domestic violence offences LEGISLATION CITED : Crimes Act 1900 - s 33B(a) CASES CITED: R v Glen (NSWCCA, 19 December 1994) Nekuda (1989) 39 A Crim R 5 DECISION : Application for leave to appeal granted, appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60047/01

WOOD CJ AT CL HOWIE J

FRIDAY 29 JUNE 2001 REGINA v TREVOR CLIVE GREENE JUDGMENT 1 HOWIE J: The applicant Trevor Clive Greene seeks leave to appeal against the sentence imposed upon him by Judge Ducker on 15 December 2000 to a charge of using an offensive weapon with intent to inflict grievous bodily harm contrary to the provisions of s 33B(a) of the Crimes Act. The charge to which the applicant pleaded guilty was an alternative to a count which alleged the applicant had attempted to murder the victim. The Crown accepted the plea to the less serious offence in full discharge of the indictment. The maximum penalty for the offence is imprisonment for 12 years. 2 The applicant was sentenced to imprisonment for 5 years with a non-parole period of 2 years. The sentences were backdated to commence on 30 October 2000 in order to give the applicant credit for the period served in custody before he was released to bail. The non-parole period specified is to expire on 29 October 2002, the date upon which the applicant is eligible to be released to parole. 3 The factual basis upon which Judge Ducker had to sentence the applicant was contained in an agreed statement of facts. None of the statements of witnesses was placed before him. The facts can be summarised briefly. The victim of the offence then known as Ms Smidt, and the applicant had been in a relationship for about 5 years and lived together as man and wife since July 1998. On the evening of 17 July 1999, they went together to licensed premises in Ballina. They left those premises after having consumed a quantity of alcohol at about 9.30pm and hired a taxi. The two began to argue as to whether they should proceed on to the RSL Club. Ms Smidt's wishes prevailed and they went home. However, they continued to argue both before leaving home to go to the RSL club and on their return about an hour later. 4 Ms Smidt went to bed and sometime later awoke to find the applicant standing alongside her. He twice lifted the bed up tipping her on to the floor. The applicant then on three occasions, one after the other, lit a cigarette and threw it at her. The applicant then left the room and returned with a bottle of what Ms Smidt thought was mineral turpentine. He splashed it over her saying "This is the end. It is over. I warned you before." The applicant then physically assaulted her. Eventually he pinned her to the bed, kissed her telling her it was the last kiss she would receive from anyone. 5 Ms Smidt pushed herself free and went to the bathroom intending to remove her clothes to rid herself of the turpentine but before she could do so, the applicant pinned her against the bathroom sink and attempted, three times, to set fire to the jumper she was wearing with a cigarette lighter. However, the applicant's attempts to produce a flame failed. Ms Smidt then removed her clothes and got into the shower. 6 Eventually she was able to leave the premises. She was still naked but dressing as she fled and made her way to the police station. She immediately reported the incident. The applicant was then arrested and took part in a recorded interview. Although he accepted some of what Ms Smidt had told the police, he denied that he had attempted to set fire to her. The applicant was heavily intoxicated by alcohol at the time. 7 The applicant remained in custody until 2 September 1999 when he was granted bail by the Supreme Court. In November 1999 Ms Smidt and the applicant were married. 8 Ms Smidt gave evidence before Judge Ducker to the effect that she had wanted to have the charge against the applicant withdrawn by both the police and the Director of Public Prosecutions. Letters that she had written to the applicant while he was in custody and statements she prepared for the police and the Director of Public Prosecutions were tendered. In a statement she gave to the police on 18 August 1999 she indicated that she would not be willing to give evidence against the applicant. She stated that the applicant had an alcohol problem and that it was a matter that should be addressed in a rehabilitation centre. She expressed similar sentiments to the Director of Public Prosecutions. It was the evidence and attitude of Ms Smidt which apparently persuaded a judge of the Supreme Court to grant the applicant bail. 9 In her evidence before Judge Ducker Ms Smidt, who now refers to herself as Mrs Greene, explained that she had a gambling addiction and that in order to support it she had been following the profession of a prostitute from the home where the applicant and she were living. She attempted to explain her complaint to the police on the basis that she was intoxicated by drugs and alcohol. 10 The attitude of Ms Smidt to the prosecution of the applicant was largely irrelevant except insofar as it impacted upon the importance of the applicant's plea of guilty. Judge Ducker recognised the significance of the plea in these circumstances and gave it due weight. 11 The applicant was 51 years of age at the time of the offence and was considered by his Honour to have no prior convictions. The applicant generally works as a self-employed painter and decorator. His Honour accepted that while the applicant was in custody Ms Smidt had taken and sold or pawned a large amount of his property including his work tools in order to obtain money for her gambling habit. 12 In a psychological report tendered in the sentencing proceedings it is stated that the applicant had been drinking alcohol all his life since the age of 3. His parents divorced when he was aged 14 and his father had been violent both to the applicant's mother and the applicant himself prior to the separation. The applicant was at one stage married for 26 years and had 2 children but the relationship ended due to his alcoholism. He was described as being just above the borderline intellectually handicapped range in relation to his intellectual capacity and general knowledge. It was predicted that he would sometimes be out of his depth in dealing with complex interpersonal social situations. 13 The applicant told the psychologist that since being released from custody he undertook alcohol counselling for 3 to 4 months and that since being charged with the offence he had not consumed any alcohol at all. The psychologist was of the view that he was not by nature a violent man and that the court might look to the extremity of the situation in order to understand his behaviour. There was support for the applicant's claim that he had been attempting to address his long term alcohol abuse in a reference from a dependency counsellor at the Ballina Community Health Centre. 14 In a pre-sentence report the officer expressed the opinion that both the applicant and his wife displayed a tendency to minimise the seriousness of the applicant's offence and the potential consequences. The officer believed that the applicant required counselling and group work to develop an understanding of what triggered his loss of control and to find a method of controlling his feelings of aggression. Because of the officer's strong opinion that conflict might occur in the relationship between the applicant and his wife in the future he believed that the applicant would require techniques designed to assist him to deal with feelings of frustration, rage and jealousy. 15 Only one ground of appeal asserts that there was a patent error made by his Honour during the sentencing remarks. All other grounds assert that by reason of his Honour's failure to give weight to some particular factor or other the sentence was excessive. Those grounds can only be determined by a consideration of the sentence imposed in the light of the objective seriousness of the offence and the applicant's subjective circumstances. 16 It is asserted that his Honour erred in giving weight to the need for general deterrence because of what his Honour perceived to be "a growing tendency of offenders to resort to the use of corrosive and inflammatory substances as a means of inflicting death and injury upon other human beings". The complaint is that his Honour had no evidentiary material to justify the particular emphasis he placed on general deterrence. The short answer to that submission is that general deterrence was a significant matter in sentencing the applicant simply because of the prevalence of violence by men against women in domestic relationships: R v Glen (NSWCCA, 19 December 1994). The means by which injury is sought to be inflicted upon the other person does not seem to me to matter greatly once it is accepted that the means could have resulted in death or serious injury, particularly where the latter harm is intended. In any event, a judge is not disentitled from giving significant weight to general deterrence simply because a particular type of offence, or the manner in which an offence is carried out, is rare or unusual: Nekuda (1989) 39 A Crim R 5. There is no merit in this ground, even though it was also submitted that by reason of the limited mental capacity of the applicant general deterrence was not appropriate in this particular case. In my view, his Honour was entitled and was required to give it significance. 17 The other grounds relied upon contend that the sentencing judge gave insufficient weight to the pleas of guilty or pitched the starting level too high before the discount was given; that he gave insufficient weight to provocation and the emotional stress of the applicant arising from the conduct of the victim; and that insufficient regard was had to the applicant's low intellect, his depression and incapacity to resolve interpersonal difficulties. Because it is not suggested that his Honour failed to mention any of these matters or made any other error of principle in relation to them, they are really encompassed in the assertion that the sentence is manifestly excessive having regard to these subjective matters and, therefore, his Honour must have erred in relation to the weight or use he made of them. 18 The difficulty with that submission is that I am unpersuaded that the sentence imposed was outside the range of a proper exercise of his Honour's discretion. I accept that having regard to the value of the plea in this particular case because of the attitude of the victim, and the attempts at rehabilitation by the applicant, a sentence of 5 years is high if not at the top of the range. But because of the very real potential for appalling injuries and even death to the victim, the offence was a gravely serious one. The offence was not an instantaneous reaction to some act of provocation on the part of the victim. The applicant had to deliberately obtain the bottle of what is thought to be turpentine, splash it over the victim and then restrain her in order to prevent her from ridding herself of her clothes so that he could set them alight. 19 Notwithstanding the strong matters of a subjective nature the offence required a severe sentence if for no other reason than to bring home to the applicant the seriousness of what he attempted to do. Although it was submitted that this was an exceptional case, those matters relied on, if truly exceptional, were to be addressed, if at all, in the minimum period to be served by the applicant in custody. The non-parole period is in my view a relatively lenient one having regard to the head sentence and the objective seriousness of the offence and, in my opinion, no lesser period of custody could have been imposed. 20 I propose that the application for leave to appeal be granted but the appeal be dismissed. 21 WOOD CJ AT CL: I agree. The order of the Court will be as proposed by Howie J. ************